Protection of Tribal Land Implications of Trust Responsibility, Environmental Law and Environmental

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Protection of Tribal LandImplications of Trust
Responsibility, Environmental Law and
Environmental Justice

• Brenda Brandon TOSNAC Coordinator
• Martin Alexie HERS Research Assistant
• Haskell Environmental Research Studies Center

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STATUTES REGULATIONS

• A statute is a type of law
• they exist at the federal, state, county and
  local levels
• federal statutes are written by Congress and
  signed by the President
• Regulations support statutes
• they are issued by governmental agencies to
  carry out the law
• they are the details that state how a law will
  be implemented

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EXECUTIVE ORDER

• An Executive Order is an order issued by a
  governments chief executive
• it is not a statute or regulation
• it is not written or passed by a legislative body
• it is intended to give attention to a certain law
  or body of laws directs federal agencies how to
  implement them
• agencies to which an Executive Order applies have
  a legal and political obligation to fulfill the
  requirements of the order

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Important Tribal Law Concepts

• Treaties, and other Agreements (e.g. Executive
  Orders and Statutes)
• Tribal Sovereignty, including Jurisdiction
• Federal Trust Responsibility
• Executive Order 13175 (2000)
  Consultation and Coordination With Indian Tribal
  Governments
• Government-to-Government Relationship

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Contemporary Trust Responsibility

• Tribal Natural Resources
• 20 known natural gas and oil reserves
• 50 potential uranium and other mineral reserves
• 30 coal reserves west of the Mississippi River
• Fiduciary duties- limited trust implemented by
  BIA regulations
• Timber
• Leased energy resources
• Leased mineral resources
• Water resource management

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History of Indian Mining Law

• Indian Mineral Leasing Act (1891)
• Required consent by Tribal leadership
• Supreme Courts Lone Wolf Decision (1903)
• Upheld congressional power to take land
• Indian Mineral-Leasing Act (1938)
• Restated Tribal consent to leases
• Standardized leasing policies
• Indian Termination Resolution (1953)
• Individual management of Tribal resources

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Tribal Control over Resources

• Council of Energy Resource Tribes (CERT)
• 26 Tribal governments (1975)
• Assert control over their own resource and
  development objectives
• Assess their own resources
• Negotiate and renegotiate lease and contract
  terms
• Build Tribal capacity through self-management of
  resources

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Indian Mineral Development Act (1982)- Trust
Provisions

• Liability
• the United States shall not be liable for losses
  sustained by a tribe.
• Supervision of Operations
• the Secretary shall continue to have a trust
  obligation to insure the rights of a tribe or
  individual are protected.
• Incorporates reference to
• National Environmental Policy Act (1969)
• Endangered Species Act (1973)
• National Historic Preservation Act (1966)
• Reflects Congressional intent to minimize
  adverse effects

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3809 Mining Regulations (2001)

• Bureau of Land Management
• Provisions for protection of Federal Land
• Public health
• Public land resources
• Environment
• Responsible Mining
• Require all mining operators to provide a
  financial guarantee that covers the estimated
  cost of reclamation (cleanup)

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Case of the Kitty Litter Plant

• Reno-Sparks Indian Colony and the Great Basin
  Mine Watch
• Hungry Valley, Nevada
• Chicago-based Oil-Dri Corporation claim to mine
  clay
• Impact to air and water
• Noise pollution, large truck traffic, visual
  degradation, night-time lights, and suburban
  sprawl

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Executive Order 13007 Indian Sacred Sites (1996)

• Accommodate access to sacred sites by Indian
  religious practitioners
• Applies to Federally owned lands except Trust
  Lands
• Protect the physical integrity of sacred sites
• Complements other procedures regarding tribal
  life
• Executive Directive on eagle feather use in the
  practice of the American Indian religion (1994)

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Sacred Sites

• Never has a Tribal Case been Upheld in Court of
  Law for Protection of Environment Established on
  grounds of Sacredness

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President Clintons Executive Order 12898 (1994)

• Foster non-discrimination (Environmental Justice)
• in programs affecting health or environment
• Encourage greater opportunities
• for minority or low-income communities to
  participate in decisions
• Created the Interagency Working Group on
• Environmental Justice
• Required federal agencies to do additional
• research on environmental justice issues
• Described how existing laws could be used to
  address environmental justice issues

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Advancement of Environmental Justice

• Environmental acts, rules, and regulations are
  influenced by Environmental Justice (EJ)
  guidelines within agencies
• Environmental Justice guidelines and activities
  are laid in place over (superpose) Agency
  Environmental programs

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EJ Issues Addressed in Permitting

• Resource Conservation and Recovery Act
• Hazardous Waste Treatment, Storage and Disposal
• Clean Water Act
• State Water Quality Standards
• National Pollution Discharge Elimination System
  Permits
• Section 404 of CWA- Army Corps of Engineers
• Clean Air Act
• New Source Review
• Title V- permits from stationary sources
• Tribal Air Rule (40 CFR Part 71)

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Potential Environmental Justice Authorities

• Superfund (composed of two authorities)
• CERCLA (Comprehensive Environmental Response,
  Compensation and Liability Act)
• SARA (Emergency Planning and Community Right to
  Know Act)
• Safe Water Drinking Act
• Toxic Substances Control Act
• Federal Water Pollution Control Act
• Federal Insecticide, Fungicide, and Rodenticide
  Act
• Marine Protection, Research, and Sanctuaries Act
• Endangered Species Act
• National Environmental Policy Act

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Interagency Federal Working Group on
Environmental Justice

• Environmental Protection Agency
• Office of Management and Budget
• Office of Science and Technology Policy
• Office of the Deputy Assistant to the President
  for Environmental Policy
• Office of the Assistant to the President for
  Domestic Policy
• National Economic Council
• Council of Economic Advisers
• and such other Government officials as the
  President may designate

• Department of Defense
• Department of Health and Human Services
• Department of Housing and Urban Development
• Department of Labor
• Department of Agriculture
• Department of Transportation
• Department of Justice
• Department of the Interior
• Department of Commerce
• Department of Energy

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Environmental Justice
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EJ
Clean Water Act
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EJ
Clean Air Act
CWA
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EJ
CAA
CWA
Resource Conservation and Recovery Act
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EJ
CAA
CWA
Lead-Based Paint Reduction act
RCRA
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EJ
CAA
CWA
RCRA
Lead Paint
Brownfields
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EJ
CAA
CWA
RCRA
Lead Paint
Superfund
Brownfields
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EJ
CAA
CWA
National Environmental Policy Act
RCRA
Lead Paint
Superfund
Brownfields
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Environmental Impact to TribesCultural Risk
Considerations

• Sustainability concerns
• Human and Environmental Health
• Natural and Cultural Resources
• Social Enhancement and Economic Opportunity
• Any proposed environmental project, contaminant
  concern or cleanup activity can impact any or all
  categories of cultural consideration

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Tribal Cultural Risk Considerations in
Environmental Impact Assessment
EJ
Sustainability
Cultural Resources
Social Enhancement Economic Opportunity
Health Environment
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Application of Cultural Risk Assessment and Risk
Management

• Assess impact of proposed environmental action
• Assess impact of environmental hazard
• Develop risk reduction strategies
• Contribute to development of Tribal Comprehensive
  Environmental Plan
• Community involvement in environmental
  decision-making processes

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Considerations of Tribal Empowerment
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Tribal Case Study III

• Fort Belknap Tribes
• Harlem, Montana

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Snake Butte Mountain Brownfields, Zortman
Landusky Mine Superfund
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Influence of Contaminants on Tribal Cultural Risk
Concerns

• Different contaminants are represented by
  brightly colored dots
• Contaminants can impact any or all categories of
  cultural risk-
• Sustainability concerns
• Human and Environmental Health
• Natural and Cultural Resources
• Social Enhancement and Economic Opportunity

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Fort Belknap Case
EJ
Brownfields- Snake Butte
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EJ
Brownfields
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EJ
Superfund- Zortman Landusky Mine
Brownfields
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Multiple Contamination Concerns

• Tribes can be impacted by a number of
  contaminated sites
• Some sites have multiple contaminant concerns,
  indicated by small dots connected by lines
• A particular contaminant source can influence
  multiple regulatory aspects, indicated by arrows
  connecting circles

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EJ
Brownfields
Superfund
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EJ
CWA
Brownfields
Superfund
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Multi-Media and Multiple Source Contamination and
EJ Concerns

• Involving multiple media, such as water and air,
  or air and sediment increases level of EJ
  concerns
• Multiple contaminant sources can add to
  complexity of EJ concerns
• Multiple environmental activities can have
  cumulative impact to the Realm of EJ the
  stacking affect

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EJ
CWA
RCRA
Brownfields
Superfund
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EJ
CWA
RCRA
Brownfields
Superfund
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EJ
CWA
RCRA
NEPA
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Brownfields
Superfund
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Evaluation of Risk of EJ Concerns

• EJ concerns increase as
• number of contaminated sites increases
• multi-media concerns increases
• number of contaminants within each site increases
• degree or seriousness of contaminant impact
  increases at each site
• level of cultural impact increases overall

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Gray Areas of Defining EJ

• Any and all Tribal EJ issues become important in
  any environmental process, especially when
  multiple cultural resources or activities are
  impacted or potentially impacted
• Tribal EJ issues are not always well defined, as
  social, cultural, spiritual components are not
  easily assessed and are rarely adequately
  considered during environmental processes

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• American Communities
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